Alameda County Social Services Agency v. T.B. (215 Cal. App. 4th 1, 2013)

Opinion

BRUINIERS, J.

T.G. tested positive for cocaine at birth and was removed from the custody of his mother, Deanna G. (mother). Appellant T.B. (father) was not married to mother and did not reside with her, but was subsequently determined to be T.G.’s biological father. He appeared at the jurisdiction hearing, requested paternity testing, and stated that he would seek custody if T.G. was his son. Although ultimately recognizing T.B. as T.G.’s “presumed father,” the juvenile court terminated the parental rights of both mother and father. (Welf. & Inst. Code, § 366.26.) Father appeals, arguing that the order terminating his parental rights was constitutionally invalid because the juvenile court never made a finding that he was an unfit parent. We agree and reverse.

I. The Law Regarding Parentage

“The Uniform Parentage Act (Fam. Code, § 7600 et seq.) . . . provides the statutory framework by which California courts make paternity determinations. [Citations.] Under this statutory scheme, California law distinguishes ‘alleged,’ ‘biological,’ and ‘presumed’ fathers. [Citation.] ‘A man who may be the father of a child, but whose biological paternity has not been established, or, in the alternative, has not achieved presumed father status, is an “alleged” father. [Citation.]’ [Citation.] ‘A biological or natural father is one whose biological paternity has been established, but who has not achieved presumed father status . . . .’ [Citation.] [f] ‘Presumed’ fathers are accorded far greater parental rights than alleged or biological fathers. [Citation.] Presumed father status is governed by [Family Code] section 7611, which sets out several rebuttable presumptions under which a man may qualify for this status .... [Citations.] Biological fatherhood does not, in and of itself, qualify a man for presumed father status under [Family Code] section 7611. On the contrary, presumed father status is based on the familial relationship between the man and child, rather than any biological connection. [Citation.]” (In re J.L. (2008) 159 Cal.App.4th 1010, 1018 [72 Cal.Rptr.3d 27], fn. omitted.) “[T]o become a presumed father, a man who has neither married nor attempted to many his child’s biological mother must not only openly and publicly admit paternity, but must also physically bring the child into his home.” (Adoption of Michael H. (1995) 10 Cal.4th 1043, 1051 [43 Cal.Rptr.2d 445, 898 P.2d 891], italics omitted.)

“California dependency law distinguishes between a presumed father, a biological father and a biological father who came forward early in the dependency case and displayed a full commitment to the child (Kelsey S. father). (Adoption of Kelsey S. (1992) 1 Cal.4th 816 [4 Cal.Rptr.2d 615, 823 P.2d 1216]; In re Zacharia D. (1993) 6 Cal.4th 435, 451 [24 Cal.Rptr.2d 751, 862 P.2d 751]; In re Jason J. (2009) 175 Cal.App.4th 922, 931-932 [96 Cal.Rptr.3d 625] . . . .)” (In re A.S. (2009) 180 Cal.App.4th 351, 362 [102 Cal.Rptr.3d 642] (AS.).) “[T]he private interest at stake in dependency proceedings varies according to the father’s status. Presumed fathers possess far greater rights than biological fathers. [Citation.] ‘[A] biological father’s “desire to establish a personal relationship with [his] child, without more, is not a fundamental liberty interest protected by the due process clause.” [Citation].’ [Citation.]” (A.S., supra, 180 Cal.App.4th at p. 359, italics omitted.) “[0]nly a presumed, not a mere biological, father is a ‘parent’ entitled to receive reunification services under section 361.5.” (In re Zacharia D., supra, 6 Cal.4th at p. 451.) Thus, the courts have “consistently held that a biological father’s rights are limited to establishing his right to presumed father status, and the court does not err by terminating a biological father’s parental rights when he has had the opportunity to show presumed father status and has not done so. [Citations.]” (A.S., at p. 362.) With respect to Kelsey S. fathers and presumed fathers, however, the juvenile court cannot terminate parental rights without finding, by clear and convincing evidence, that placement with the father would be detrimental. (Adoption of Kelsey S., supra, 1 Cal.4th atp. 849; In re G.S.R. (2008) 159 Cal.App.4th 1202, 1205 [72 Cal.Rptr.3d 398]; In re Gladys L. (2006) 141 Cal.App.4th 845, 847-848 [46 Cal.Rptr.3d 434] (Gladys L.).)

At the dispositional hearing, a noncustodial presumed father is entitled to request custody, pursuant to section 361.2. Section 361.2, subdivision (a), provides: “When a court orders removal of a child pursuant to Section 361, the court shall first determine whether there is a parent of the child, with whom the child was not residing at the time that the events or conditions arose that brought the child within the provisions of Section 300, who desires to assume custody of the child. If that parent requests custody, the court shall place the child with the parent unless it finds that placement with that parent would be detrimental to the safety, protection, or physical or emotional well-being of the child.” (Italics added.) Our Supreme Court has said that “section 361.2 applies only when the child is first removed from the custodial parent’s home.” (In re Zacharia D., supra, 6 Cal.4th at p. 439.)

II. Factual and Procedural Background

Section 300 Petition

On January 7, 2009, the Alameda County Social Services Agency (Agency) filed a section 300 petition on behalf of T.G., who was a newborn baby at the time. The petition alleged mother’s failure to protect T.G. (§ 300, subd. (b)), after T.G. tested positive for cocaine at birth. Mother admitted using cocaine and marijuana during her pregnancy. The petition also alleged that mother had failed to reunify with at least one of T.G.’s siblings or half-siblings. Finally, the petition alleged, pursuant to section 300, subdivision (g): “The identity, whereabouts and circumstances of the father’s ability to care for [T.G.] is unknown. [Mother] states that she does not know who the father is.”

Detention Report and Hearing

On January 8, 2009, T.G. was ordered detained. In the detention report, the social worker reported: “This is [mother’s] tenth child. She has four adult children and 5 minors who [have] been placed out of her care and adopted. [Mother] did not seek out prenatal care because she said that her other babies were bom healthy. . . . [Mother] stated that she does not know the father of the child. She was prostituting herself when she got pregnant and has no idea who the father is.” Despite mother’s long history of substance abuse, she had never entered a drug treatment program.

Jurisdiction/Disposition Report and Determination

In the jurisdiction/disposition report, the social worker recommended that no reunification services be provided to mother, pursuant to section 361.5, subdivision (b)(ll) and (13), because she had failed to treat her substance abuse problem. The Agency also indicated that T.G.’s father remained unknown and asked the court to set a section 366.26 hearing.

By the time of the combined jurisdiction and disposition hearing, mother had disappeared. However, father appeared and was appointed counsel. Father’s counsel indicated that father had signed a statement regarding parentage (Judicial Council Forms, form JV-505) indicating that he was requesting the court to order paternity testing, although he was unable to pay for it. Father also stated that, if he was T.G.’s biological father, he would seek custody. Father pointed out that he had custody of T.G.’s then 14-year-old sister, Nicole B. The Agency stated that it opposed court-ordered testing because it was not willing to pay. When the juvenile court asked father’s counsel for authority to support his request for court-ordered testing, father’s counsel said: “It’s been past custom in this county. I don’t know if [father] has an absolute right. I think it’s the court’s discretion to order paternity testing for alleged fathers who present themselves in court and who have signed a declaration requesting same.”

The juvenile court concluded that father, as an alleged father, did not have standing to contest the jurisdictional allegations. Thus, the matter was submitted on the report prepared by the Agency. The court found “true” the allegations under both section 300, subdivision (b), and subdivision (g). The court found: “The welfare of [T.G.] requires that custody be taken from the following person(s): mother, Deanna [G.] [][] For Federal AFDC purposes, the home of removal is that of the mother . . . .” The court also ordered bypass of reunification services as to mother, pursuant to section 361.5, subdivision (b)(ll), (13), and (15). The court also ordered: “Reunification services shall not be provided to the alleged father unless and until he establishes a legal basis.” With respect to paternity testing, the juvenile court said: “Given all the circumstances I’ve heard, [if father] is truly interested in being the custodial parent and caregiver for this young child, then he should take the responsibility and find the wherewithal to pay for his paternity test absent some authority where the court must do it given the ability-to-pay situation, [f] . . . [][] I’m not ordering testing. If he wants to be tested, fine. What I’m saying is that whatever test has to be paid for by this gentleman.” A section 366.26 hearing was set.

Section 366.26 Report

In advance of the section 366.26 hearing, the Agency submitted a section 366.26 report recommending that legal guardianship be approved as the permanent plan. The social worker noted that T.G.’s maternal cousin, S.T., and her partner, K.B., had been approved for placement. S.T. and K.B. were not interested in adoption but had requested appointment as legal guardians.

The social worker also wrote: “[Father] was referred to the Department of Child Support Services (DCSS) to pursue a paternity test; however, the Agency has since been informed that the DCSS is no longer doing paternity tests unless there is a specific child support claim case opened. Further, staff from DCSS referred the Agency to send clients to the Family Law Facilitator’s Office Self Help Center through which the alleged parent can complete and file a Paternity Packet with the Family Law Court. This would initiate a child support claim case and therefore a paternity test. On 05/01/2009, the undersigned spoke with [father] who reported that he would be willing to do this____”

Permanent Plan Hearing

The hearing on selection of a permanent plan took place on June 3, 2009. The matter was submitted on the social worker’s report. However, father’s counsel noted: “We would like you to order the Agency to do the paternity testing and go along and have the guardianship established. We want both things to occur.” The Agency’s counsel responded: “It has been our position if someone wants to know those results because they want to step forward and be a father, then they should be responsible for that and take it on themselves. [][]... [][] We are asking that the legal guardianship proceed today. If he really needs to have that test result for himself, he can go to the Family Support Center and take the test. If he doesn’t want to take on the financial responsibility, then I don’t know why he would want to know that for sure. He is still being granted visitation rights.”

The juvenile court found that notice had been given as required by law, found it likely that T.G. would be adopted, but selected legal guardianship as T.G.’s permanent plan because he was living with a relative who was unable or unwilling to adopt. Reasonable visitation was ordered for both mother and father. Letters of guardianship issued. Father was directed to the Self-Help and Family Law Facilitator Centers for paternity testing.

Status Review Report

On October 23, 2009, the Agency filed a status review report, which indicated that S.T. and K.B. now wished to adopt. Accordingly, the Agency asked the court to schedule another section 366.26 hearing. The report also noted: “[Father] has been referred to Lab Corporation for a DNA Paternity Test. [Father] states that if he is the biological father . . . , he will oppose termination of his parental rights.” It was also noted that father had been having unsupervised overnight visits with T.G. and had expressed his desire for custody, if T.G. was his biological son.

Presumed Father Finding

On November 23, 2009, the juvenile court received the positive results of the paternity testing and declared father T.G.’s “presumed father.” Father announced his intent to contest termination of his parental rights.

Request to Change Court Order

Shortly thereafter, father filed a request to change the court’s February 4, 2009 order, which had concluded father was ineligible for reunification services. The Agency opposed father’s request, arguing: “[W]here, as here, reunification services have been denied or terminated, particularly when the permanent plan is adoption, the focus shifts from a parent’s interest in the care, custody, and companionship of the child to the needs of the child for permanency and stability. ...[][]... [f] Here, Presumed Father alleges that the recent establishment of his paternity constitutes changed circumstances. This alleged change of circumstances comes too late. As mentioned earlier, Presumed Father’s whereabouts] were known as of January 8, 2009 and he has appeared in this matter as [T.G.’s] alleged father since the first uncontested hearing on January 26, 2009. Therefore, as of January 26, 2009, . . . Presumed Father was represented by counsel [and] should have been made aware that a permanent plan of adoption would mean a termination of his parental rights. Even so, as previously discussed, Presumed Father did not pursue presumed father status in a timely manner. Presumed Father was given multiple referrals for paternity tests on February 4, 2009, March 25, 2009, May 1, 2009, and again prior to November 9, 2009, but did not follow through until October or November of 2009. [][]... [f] [I]t would likewise be difficult to imagine how Presumed Father could show that the best interests of [T.G.] would be served by returning him, since Father has never actually patented him prior to his removal. In fact, [the social worker], if called as a witness, is prepared to testify that Presumed Father has only initiated four (4) visits with [T.G.] since May of 2009.”

At a hearing on the matter, held on February 26, 2010, the juvenile court set aside its original order and ordered the Agency to provide father with six months of reunification services. The court explained: “[T]he child is being protected by very able legal guardians apparently. And even when in the company of the father, there is no risk that has been mentioned or brought up in evidence either through the father’s testimony, and in cross-examination, or through any of the reports, at least it hasn’t been pointed out to me. [f] The largest concern I have about the father is his representation that he has been a successful parent, and obviously that is questionable given the number of children he’s had who have been through the system one way or the other, or permanently planned either adopted or dependent. So the Court has some concern about his parenting skills, though that wasn’t fully developed. [